Employment law updates: maternity pay, public sector strikes, flexible working, calculating holiday pay

Jill Evans, law content analyst, CIPD, looks at UK employment law developments in December 2022 and January 2023.

The statutory rate for maternity, adoption, paternity and shared parental pay rises in April this year from the current £156.66 to £172.48 a week, and statutory sick pay increases from £99.35 to £109.40 a week. The new rates were announced at the end of November. 

There is to be an additional bank holiday on Monday 8 May following King Charles III coronation on Saturday 6 May. 

Strike measures 

The government has replaced the Transport Strikes (Minimum Service Levels) Bill launched in October last year with the Strikes (Minimum Service Levels) Bill. The new Bill has a broader remit, extending beyond the public transport sector to include: 

  • NHS and ambulance services 
  • firefighters 
  • education 
  • border security 
  • nuclear decommissioning plants. 

The government is to consult the on safe staffing levels for fire, ambulance and rail services before putting the minimum levels into regulations but expects the remaining sectors to agree minimum levels with their trade unions, although the Bill allows it to produce regulations for these sectors too if organisations fail to reach agreement. 

Workers identified as essential refusing to work would make a strike unlawful, opening up the possibility of dismissal for striking workers and civil proceedings for their unions. The Bill is already facing fierce opposition. 

Flexible working  

The private member’s Bill on flexible working (see November’s ‘Employment law updates’) has been adopted by the government. Employees will no longer need 26 weeks’ service to make a request, will be able to make two requests a year instead of one, and won’t have to say how the change will affect the business. Organisations will have two months instead of three to respond and will need to consult with the employee before rejecting a request. There is no timescale for the changes yet. 

On 5 December, regulations banning exclusivity clauses in employment contracts for those earning below the lower earnings limit (£123 a week for the last tax year) came into force, thereby allowing them to work for more than one employer. 

Holiday pay 

The government has launched a consultation on calculating holiday pay for irregular hours workers following the Supreme Court's decision in Harpur Trust v Brazel last year. The decision corrected the calculation of holiday pay for a teacher who only worked for part of the academic year but created an inequality between irregular hours workers and regular hours part-time workers. The consultation proposes changing the law to include weeks with no pay in the 52-week referencing period when calculating holiday pay for these part-time workers. 

Cases to look out for in 2023 

The following cases due to be heard in the Supreme Court (SC) have significant implications for organisations: 

  • USDAW v Tesco Stores concerns the use of ‘fire and rehire’ tactics when changing terms and conditions. The trade union was successful in the High Court, which granted an injunction preventing the dismissals, but lost in the Court of Appeal. The case now goes to the SC. The government committed to producing a statutory code of practice on hiring and firing last March. 
  • Chief Constable of the Police Service of Northern Ireland v Agnew deals with holiday pay. In this case, the Northern Ireland (NI) Court of Appeal overturned the decision in Bear Scotland v Fulton which limited how far back holiday pay claims could go, allowing NI police officers to backdate claims over 20 years. The SC decision will be binding throughout the UK. 
  • In Kocur v Angard Staffing Solutions Limited, the Court of Appeal held an agency worker’s right to be informed of vacancies did not include being considered for a post in the same way as a permanent employee. The Supreme Court is due to hear the case on 7 December 2023. 
  • R (on the application of Independent Workers Union of Great Britain) v Central Arbitration Committee is one among many employment status cases involving gig economy workers. Here a trade union failed to get representation rights for Deliveroo drivers, a matter it is now taking to the Supreme Court. 

Explore our resources on these subjects:   

Maternity, paternity and adoption rights - factsheet 

Statutory rates and compensation limits – tribunal compensation limits and statutory pay rates  

Bills in Parliament  

Recent and forthcoming legislation - latest employment law developments and future changes  

Fire and rehire 

'Fire and rehire' – guidance for employers 

Flexible working 

Flexible working practices - factsheet 

Employee relations  

Trade union recognition and industrial action Q&As - commonly asked questions on the legal issues  

Holiday pay 

Case law on holiday pay - selected cases on employees' rights to holiday pay 

Employment law: key differences between Northern Ireland and Great Britain - factsheet 

Agency workers 

Case law on agency workers - selected cases on the rights of agency workers 

Agency workers: understanding the law - guide 

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